Pocono Mountain fifth-grader wins appeal in religious liberty case

Wednesday

Mar 13, 2013 at 12:01 AM

PHILADELPHIA — A Barrett Elementary Center fifth-grader may distribute invitations to a church Christmas party at her public school because it won't cause a "substantial disruption," a U.S. appeals court panel ruled Tuesday.

MARYCLAIRE DALE

PHILADELPHIA — A Barrett Elementary Center fifth-grader may distribute invitations to a church Christmas party at her public school because it won't cause a "substantial disruption," a U.S. appeals court panel ruled Tuesday.

The panel upheld a lower court's preliminary decision allowing the student — identified only as K.A. — to take the invitations into her Pocono Mountain school based on a free speech standard established in a Vietnam-era Supreme Court case involving a high school anti-war protest.

The 3rd U.S. Circuit Court noted the law is still evolving on how the case should affect elementary schools.

"The fact that K.A. was only in the fifth grade and the invitation originated from her church does not mandate a different approach," Judge Thomas Vanaskie wrote in his 31-page opinion.

At the same time, the three-judge panel said schools can exert more control over younger students, given their age and maturity level. The court has previously said a preschooler could not distribute pencils promoting a Christian message to classmates.

In this case, the invitation described a 2010 Christmas party at Innovation Church in Cresco, with iKidz Rick Night, face painting, ping pong, cup-stacking, foosball, games, prizes and snacks.

After some back and forth between the girl's father and school officials, the Pocono Mountain School District rejected the girl's request to distribute the flier. The girl's father, Michael Ayers, filed the suit to allow his daughter to distribute information about the free event.

In its ruling, the court noted that the district allowed some organizations to send fliers home with students about non-school events. Students were also permitted to distribute birthday party invitations, Valentines and other material.

The girl hoped "to share her religious faith with her classmates," according to the opinion.

The court ruled that K.A. is permitted to distribute religious fliers through the take-home folders as well as display fliers on the literature distribution table at the school.

Alliance Defending Freedom, a conservative Christian legal group based in Scottsdale, Ariz., backed the family's appeal.

"America's public schools should recognize the constitutionally protected freedom of students who wish to hand out these kinds of fliers," said Matt Sharp, the group's legal counsel. "A flier cannot be banned just because some element of religious faith is a part of it. On the contrary, the First Amendment specifically protects religious speech."

The Rev. Charles Kollar, pastor of Innovation Church, said in an email Tuesday, "It's been said that the squeaky wheel gets the grease. Typically, human nature being what it is, we're not too happy with the squeaky wheel. However, at times, it is the only way to 'get the grease.'"

"In this case, a common sense decision to allow children to invite other children to after-school activities (as long as it does not take away from classroom time)," Kollar said. "Whether the invitation is for a religious or non-religious event should not be a factor."

Lawyer John Freund, who represented the school district, did not immediately return a message left at his office Tuesday. An email sent to the school district was also not returned.

Pocono Record Managing Editor Marta Gouger contributed to this report.